Citation NR: 9802240
Decision Date: 01/27/98 Archive Date: 02/02/98
DOCKET NO. 97-06 261 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for an indirect right
inguinal hernia.
2. Entitlement to service connection for the right and left
knee disorders.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Linda McCain Parson, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1968 to
August 1968.
Cirrhosis of the liver was denied in May 1996. The veteran’s
January 1997 statement which referred to cirrhosis was
accepted as a notice of disagreement. A statement of the
case was issued in February 1997 and no appeal was perfected
therefrom. Therefore, the Board of Veterans’ Appeals
(Board) does not have jurisdiction to decide that issue.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the veteran contends that his right and left knee
disorders were incurred in military service, and his right
inguinal hernia was aggravated by his military service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims of
entitlement to service connection for an indirect right
inguinal hernia and the right and left knee disorders are
well-grounded.
FINDING OF FACT
The claims of entitlement to service connection for an
indirect right inguinal hernia and the right and left knee
disorders are not supported by cognizable evidence showing
that the claims are plausible or capable of substantiation.
CONCLUSION OF LAW
The claims of entitlement to service connection for an
indirect right inguinal hernia and the right and left knee
disorders are not well-grounded. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim
is a plausible claim, meaning a claim that appears to be
meritorious. See Murphy, supra.
An allegation that a disorder is service connected is not
sufficient; the veteran must submit evidence in support of
the claim that would “justify a belief by a fair and
impartial individual that the claim is plausible.” See
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992). The quality and quantity of the evidence
required to meet the statutory burden of necessity will
depend upon the issue presented by the veteran. Grottveit v.
Brown, 5 Vet. App. 91, 92-93 (1993).
In order for a claim to be well grounded, there must be
competent evidence that the veteran currently has the
disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992). There must also be evidence of incurrence or
aggravation of a disease or injury in service. See Caluza v.
Brown, 7 Vet. App. 498 (1995). The veteran must also submit
evidence of a nexus between the in-service disease or injury
and the current disability. Id. If the determinative issue
is one of medical etiology or a medical diagnosis, competent
medical evidence must be submitted to make the claim well
grounded. See Grottveit, supra.
A lay person is not competent to make a medical diagnosis or
to relate a medical disorder to a specific cause. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However,
where the issue does not require medical expertise, lay
testimony may be sufficient. See Layno v. Brown, 6 Vet. App.
465, 469 (1994).
If the veteran fails to submit evidence in support of a
plausible claim, the Department of Veterans Affairs (VA) is
under no duty to assist the veteran in any further
development of the claim. Id. Further, the veteran’s burden
to submit evidence sufficient to establish a well-grounded
claim is the veteran’s alone and is not relieved by the
benefit of the doubt provision. See 38 U.S.C.A. § 5107 (West
1991 & Supp. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir.
1997); See Murphy, supra.
Pertinent law and regulations in this case provide that
entitlement to service connection may be allowed for a
disability which is incurred in or aggravated by the
veteran’s period of active service. 38 U.S.C.A. § 1110
(West 1991 & Supp. 1997). Service connection may be granted
for a pre-existing disease when the disease has been
aggravated by active military, naval, or air service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. § 1153 (West 1991 & Supp. 1997); 38 C.F.R. §
3.306(a)(1996). Clear and unmistakable evidence (obvious or
manifest) is required to rebut the presumption of aggravation
where the pre-service disability underwent an increase in
severity during service. 38 C.F.R.
§ 3.306(b) (1996). This includes medical facts and
principles which may be considered to determine whether the
increase is due to the natural progress of the condition.
Id. Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all of the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. Id. A veteran may also present a
well-grounded claim by demonstrating chronicity of disease
and continuity of symptomatology. 38 C.F.R. § 3.303(b);
Savage v. Gober, No. 94-503 (U. S. Vet. App. Nov. 5, 1997).
The supporting evidence must be medical unless it relates to
a condition as to which, lay observation is competent. See
Espiritu, supra. If the veteran is unable to apply the
chronicity provision, the claim may be well-grounded if the
disability or condition is observed during service or any
applicable presumptive period, the continuity of
symptomatology is demonstrated thereafter, and competent
evidence relates the present condition to that
symptomatology. See Savage, supra. As will be explained
below, the Board finds that the veteran’s claims to service
connection for the above listed disorders are not well-
grounded.
1. Indirect Right Inguinal Hernia.
The veteran denied having a history of tumors, growths,
cysts, hernias or ruptures on the April 1968 induction
medical history. The medical examination reported a left
hernia, later shown to be on the right, and referred the
veteran for a Medically Remedial Enlistment Program (MREP)
consultation and waiver. The April 1968 referral form
reported the veteran was disqualified for service under
present standards because of the hernia.
A right inguinal hernia of moderate size was noted on
consultation in May 1968. The examiner reported the
condition was correctable with surgery and that the veteran
would be able to participate in basic training approximately
6 weeks from the time of correction.
In pertinent part, the service medical records (SMR’s) dated
in July 1968 confirmed the presence of an easily reducible
right inguinal hernia and noted the veteran had not
participated in any training days. The diagnostic impression
was right indirect inguinal hernia. The plan was to schedule
the veteran for repair in July 1968.
The medical board examination dated in July 1968 revealed
that the veteran admitted to having a right inguinal hernia
for about one year. As the veteran refused to accept
surgery, the medical board recommended that the veteran be
discharged. The medical board recorded that the indirect
right inguinal hernia existed prior to enlistment and was not
aggravated by service. The case file does not contain a
discharge physical examination.
In pertinent part, a September 1995 VA examination (VAE)
reported that the veteran never had the recommended surgical
repair of the right inguinal hernia and surgery had not been
recommended by a practitioner since that time. The veteran
reported that he had performed general roughneck work, such
as laborer and oil field-hand, and had not been able to work
for the past seven to nine years. The examiner noted a very
old right inguinal hernia repair scar and approximated a 2
centimeter dilation of the right inguinal ring without any
descent of a hernia. The diagnosis was small right inguinal
hernia.
VA treatment records, received in February 1996, for the
period of January 1995 to November 1995 were silent as to a
diagnosis or treatment of a right inguinal hernia.
The veteran argued in his March 1996 notice of disagreement
that his hernia worsened due to having to take basic training
without first having surgical repair. In the December 1996
substantive appeal, the veteran stated he completed all but
one week of basic training before being scheduled for surgery
and refused the surgery because it would require him to
repeat basic training.
The veteran’s length of service was approximately five weeks.
In this case, the veteran’s right indirect inguinal hernia
clearly pre-existed service. It was specifically recorded on
the entrance examination, at which time further consultation
was arranged. The additional examination confirmed the
presence of the disorder. While the veteran also had
reported a history of a hernia, and most recently stated on
VAE that he knew it had recurred when he entered service, the
clinical data alone clearly establish the presence of pre-
existing disability. In view of the evidence of record,
therefore, the presumption of soundness is not for
application. See 38 C.F.R. 3.304(b)(1996); Crowe v. Brown, 7
Vet. App. 238 (1994); Bagby v. Derwinski, 1 Vet. App. 225
(1991).
The Board stresses that the veteran’s right inguinal hernia
was manifest during service and aggravation thereof has not
been shown. See 38 C.F.R. §§ 3.306(b), 3.307. In
particular, the Board notes that, contrary to the veteran’s
report on VAE regarding problems during bootcamp, the service
records show that he had not participated in training. As
the service history was recorded contemporaneous with the
events in question, and the veteran’s current statement is
based on a recollection of events approximately 25 years
earlier, and is not supported by the SMR’s, the Board views
the service records as more reliable. Further, continuity of
symptomatology is present only by virtue of the veteran’s
claim; no records of treatment have been presented since
discharge to demonstrate the inguinal hernia was aggravated
by service. 38 C.F.R. § 3.303(b); See Savage, supra.
Lastly, the Board also points out that although the veteran
seeks to relate his current right inguinal hernia to his
period of service, there is no indication that the veteran
has the requisite medical expertise to offer such an opinion.
See Espiritu, supra.
While the foregoing evidence shows that the veteran has a
right inguinal hernia that is easily reducible and was
manifest on enlistment, no competent evidence has been
presented to show that the veteran’s current symptomatology
was the result of aggravation by military service. Indeed,
the medical board during service indicated that the hernia
was not aggravated during service; no other medical opinion
has been presented that reports aggravation of the
preexisting hernia. Therefore, the claim for entitlement to
service connection for an indirect right inguinal hernia is
not well-grounded. The matter must be denied.
2. Right and Left Knees
The veteran by his report was in good health on enlistment,
as noted above. The veteran’s medical history was negative
for bone, joint, or other deformity, arthritis, and trick
knee or locked knee. The SMR’s are negative for complaint,
diagnosis or treatment of the knees during service. As noted
above, there was no discharge physical examination in the
case file.
In pertinent part, the VAE noted above reported that the
veteran denied having pain in either knee. The veteran
reported that his knees did not feel right, the right knee
tended to pop, and sometimes he popped the right knee
himself because it would feel better. On the
gastrointestinal examination, the examiner noted that the
veteran did not complain of his knees and was unable to
elicit any history of injuries to the knees while in
service. On the orthopedic examination, the knees both
measured 14 1/2 inches in circumference. There was no
subluxation, lateral instability, or loose motion. There was
no swelling or deformity of either knee and no evidence of
old injury. Flexion of the knees bilaterally was to 140
degrees. Extension of the knees bilaterally was to zero. X-
rays of the knees revealed no fracture, dislocation or bony
abnormalities. The diagnostic impression was that the
veteran had normal knees.
The VA treatment records mentioned above were silent as to
complaints, diagnosis or treatment of a right or left knee
disorder.
In pertinent part, in his March 1996 and December 1996
statements, the veteran stated that his knees did not cause
him any problems until he marched so much in basic training
and has been in pain since service when walking or standing.
In this instance, the veteran’s claims are clearly not well-
grounded. The record fails to demonstrate the presence of
right and left knee disorders in service or thereafter. As
right and left knee disorders have not otherwise been
demonstrated, the Board must conclude that the veteran has
not presented well-grounded claims in this regard. See
Rabideau, supra. The claims, therefore, must be denied.
3. Additional Considerations
The Board points out that the veteran has been informed of
the evidence required to substantiate or complete any claims
and he has not informed the VA of the existence of any
specific evidence germane to the claims at issue that would
complete an incomplete application for compensation, to well
ground an otherwise not well-grounded claim, if submitted.
38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1997); 38 C.F.R. §
3.159 (1996); Epps v. Brown, 126 F.3d 1464 (Fed. Cir. 1997);
Robinette v. Brown, 8 Vet. App. 69 (1995).
In view of the foregoing, the Board concludes that the
appellant’s claims are not well-grounded and must be denied.
38 U.S.C.A. § 5107(a).
ORDER
The veteran not having submitted evidence of well grounded
claims, the claims for service connection for an indirect
right inguinal hernia and the right and left knee disorders
are denied.
M. Sabulsky
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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